In a few days, scandal-prone Günther Oettinger will stop being Europe’s top internet policy maker – he’s being promoted to oversee the EU budget.

But before leaving, the outgoing Digital Commissioner submitted dangerous plans that undermine two core foundations of the internet: Links and file uploads. While Oettinger is going away, his lobby-dictated proposals are here to stay.

These proposals are pandering to the demands of some news publishers to charge search engines and social networks for sending traffic their way (yes, you read that right), as well as the music industry’s wish to be propped up in its negotiations with YouTube.

These proposals will cause major collateral damage – making many everyday habits on the web and many services you regularly use downright illegal, subject to fees or, at the very least, mired in legal uncertainty.

Not that the UK government needs the EU’s assistance to pass stupid and repressive laws about the internet, but if Ms Reda is correct about what this proposed law means, and it is ever enacted, that will be ten more things to paste into my “better off out” file. Quite possibly it would be the progenitor of many more “better off out” files created by angry internet users all over Europe. But I admit that do not know enough to judge whether these proposed measures are likely to come to pass, or would really be as bad as she says, or whether there is anything to be said in their favour.

January 2nd, 2017 |

29 comments to Is this true about the EU and the internet?

I have no idea if this report is true or not – I hope NOT. But what if it is true?

Will Mrs May refuse to accept this E.U. edict? Or will we get some song-and-dance about “Brexit” (a word that no one defines – other than to say “Brexit means Brexit” which is as useful as saying “zighit means zighit” and something to do with “red, white and blue Brexit” – I was not aware that legal concepts had colour schemes).

I voted to leave the European Union – i.e. that E.U. law would no longer be valid in the United Kingdom. I did not vote for something called “Brexit”.

If this edict is real and is accepted (perhaps part of that Bill that Mrs May plans to present before Parliament to incorporate all E.U. law into British law – i.e. exactly what we voted AGAINST) it would be the end.

So let us hope it is all a false report – by a tipsy (or naughty) “pirate”.

The winds of the internet seem to blow back and forth, one minute favoring the free exchange of data, the next favoring protection of private property.

Make no mistake, they are contradictory principles in this context.

The same impulse that empowers Metallica to profit from their music informs the regulations outlined in this article.

The same impulse that allows me to download a song or movie at my whim and for free also allows me to “send traffic someone else’s way” by copying their work on my site, with a link. (Much like a burglar might drop a few dollars as he runs out my door.)

For a decade, those claiming the “freedom” mantle have been copying the intellectual property of others with impunity, holding that the inability of DRM schemes to keep them out is proof of the justness of their claim.

The tides seem to be turning, as several of the global political-wind shifts seem to hold more promise for those looking for protection. I know that in my country, major figures in the fight for more IP protection are trying to align themselves with the Trump movement, thinking that he will be more helpful than were the Democrats, who saw IP as something to take from its owners and give to their voters.

These new proposals are hugely overreaching and several bridges too far, but I suspect they’ve been advanced by people who think it’s best to ask for too much and get somewhat less.

It is probably true that someone in EU who knows nothing about computers and internet wrote just another insane law.

But the main problem is with copyright law as it stands, for conservatives and libertarians here.

For conservatives – no traditional codes of law ( common law, Roman law, Islamic law) could even imagine something like copyright. It is deliberate modern invention, on explicit utilitarian basis as “promotion of useful arts”.

For libertarians, there is now way you can justify using force on someone just because he repeated someone else words or copied pictures on his own material on his own property.

How will be then works of art financed in hypotetical free market society?

1/ They will be created by dedicated artists for free, the 95% of Hollywood – MSM junk will just vanish

2/ Art will be sponsored by rich benefactors

2/ Pure online kickstarting/fundraising/begging. “Larry Trottel fans, do you want to see part XVIII of his adventure, Larry Trottel and the Totally Absolutely Unavoidable Doom? The movie will cost 500 million, we just collected 250 million. Speed up so we can start!”

So an author spends three years crafting words and concepts into a book. All of the words in that book have been used before, by others, but he arranges them in a new order that excites and stimulates and educates its readers. That’s the sum of his labors for those three years – that book. He writes that book in the knowledge that, if it’s good, and if he can sell that book to everyone willing to buy it, he will be well paid for his three years of labor and risk.

You claim that you can merely copy that book, put your own name on it, and sell it for your own profit. Your entire justification for this has nothing to do with the morality of that action, nothing to do with overriding economic utility or fairness, nothing to do with anything other than the fact that modern technology makes it possible for you to do so.

I can easily justify using force to prevent you from doing so.

If I found a way to defeat the locks on your house, would that mean that everything in it is rightfully mine, if I can carry it out? What difference is there if I deprive you of an object of property, or you deprive me of the use of, and profit from, my property? The ability to profit from my own property is one of the many incidents of ownership, and my libertarian impulses don’t compel me to give them to you simply because you found a way to take them.

So an author spends three years crafting words and concepts into a book. All of the words in that book have been used before, by others, but he arranges them in a new order that excites and stimulates and educates its readers. That’s the sum of his labors for those three years – that book. He writes that book in the knowledge that, if it’s good, and if he can sell that book to everyone willing to buy it, he will be well paid for his three years of labor and risk.

Once that book is printed and I’ve bought it, it’s no longer the author’s book, it’s my book and I can do whatever I wish with it.
Luckily, for the author, most people are honest. That’s why, although downloading free pirate copies of music is a lot older than iTunes, iTunes continues to make money.

I am with Bobby on the IP issue, in principle – not only do I think of IP as property like any other, I happen to think that all property is intellectual, whether it has any apparent physical manifestations or not. Property is not the thing that someone owns, it is a right (a concept, which is not a “physical” thing) – it is the right of a person to make non-aggressive use of the fruits of his time and effort, be that effort “physical” or “intellectual” (a distinction without real difference).

However, I do object to the use of the force of the State to protect one’s property when such protection requires infringement on the property of others who have nothing to do with the specific product being protected – which seems to be the case with the current IP laws, and it’s only getting worse. So while I’m no fan of DRM and similar tools, if this is what it takes for producers to protect their property from theft, they should be able to use them. That said, if said producers stopped relying on the Government guns to protect their property, maybe they could instead find better ways to achieve that goal – ways that may possibly work well-enough both for them and for their consumers.

I agree with bobby b and Alisa. And Wh00ps, you do own that book: you can read it, lend it to a friend, give it away, even burn it if you like. But you can’t make copies of it and sell them. Pretty simple, actually.

But this thread is now in serious danger of degenerating into yet another tedious debate about IP, instead of EU attempts to regulate the internet.

Laird, although I agree that denouncing the sinister intentions of the EU is more fun, I am not sure it is degeneration if the thread does end up as yet another debate about IP. Perhaps someone here could be the one to formulate a way of thinking about that thorny subject that can square the circle between freedom and private property that bobby b pointed out.

Alisa, January 3, 2017 at 11:42 am: “not only do I think of IP as property like any other, I happen to think that all property is intellectual, whether it has any apparent physical manifestations or not.”

In commercial charging, as in imposing taxes, it greatly simplifies things to piggyback on some existing necessity – such as a physical manifestation imposes.

In the UK, our local taxes used to be based on the rental value of properties. Since most private houses were never rented, the tax computation was based on weird updating formula applied to usually very old (because too expensive to repeat) valuations of since-altered properties. It was a lot less efficient than, say, taxes on salaries, where employer and employee have a motive to compute the salary, so the state just takes a hefty slice of an already-computed figure.

(For example, the formula used in the last update under the old system – back in the 80s – caused the imaginary rental value of public toilets to increase 15 times – more than any other property type. 🙂 )

After turmoil at the end of the 80s, we finally ended up with a system that used the same data to compute a tax based on the purchase value of properties. This was debatable in theory: in strict literalness, it was more of a wealth tax, though statistically the purchase value correlated less poorly with occupant income than the rental value (because the rich less often rent). It was somewhat less absurd in practice, but still suffered from the fact that some houses are not sold for generations and many are sold only rarely, so the state must still compute many valuations that noone else wants based on few comparable exemplars and/or update old and inaccurate data.

So what does all this have to do with copyright? Well, commercial transactions have the advantage that both parties are always motivated to assess value: if I think the £5 note in my pocket is worth more than an item you are offering for it, I’ll not buy, nor will you sell if you think it is worth less. Nevertheless, some of the same logic applies. When the act of payment is small compared to getting the item – which can mean, when the physical manifestation is a large part of its value – many property-law problems resolve easily. When this is not so – when the value of the intellectual content is large relative to the ease of creating/copying the physical manifestation – then any but a well-thought-out charging mechanism is in danger of emulating some faults that taxing systems show.

Thus while I might (or might not completely) agree with Alisa re intellectual v. physical in the abstract, and certainly agree that the intellectual can be property, I think physicality very relevant to the ease of creating an effective market. And I’m not surprised that ill-considered schemes to “solve the problem” look a lot like taxes, with the faults of taxes.

(Meanwhile, the EU is evil and any alarming rumour about it should be taken seriously. This precise proposal may or may not end up as enforced EU law but let’s get out anyway – it’s the only way to be sure. 🙂 )

bobby and Laird, I agree. And as it stands now, we get an approximation of the circle by constructing regular polygons about a central point, with ever more sides of diminishing length; all being chords of the same circle.

So. Copyright is the concept and legal principle at issue: the right to copy, or to copy and to sell the copies. Yes, once you have bought a work (or a legitimately sold copy of one), you do (presently,As Laird says above) have the right to copy it all you want, but not to sell the copy to someone else unless a licensing agreement allows it.

This is why copyright is so named and deals not with IP as such, but rather with the issues of the right to copy a work.

As the owner of the original item (or, again, a legitimately acquired copy of one), you have the rights to dispose of that item as you will, including selling it on a garage sale, or on eBay, or to the used-book store, or lending it out for return, whether you do so as an individual or as a lending-library. You do not have the right to copy the item and then sell your self-made copy.

One can also copy and present the copy to the public under so-called “fair use” provisions of the (U.S., anyway) law, which allows for the dissemination of excerpts of a written work (at least), where the full commercial value of the thing is diminished by the requirement that the excerpts not amount to a reconstitution of the whole. So you can quote (a quotation of an excerpt is a kind of copy, but only a truncated one) from the work for the purpose of education or criticism, even though the quotation will be included in an item for commercial sale: A book, say, or an educational course (whether presented without or with charge).

As for “copying” “for free” stuff found on the Internet, it depends. A good deal is posted under the Creative Commons licenses, which may allow free-fall-all copying or may require that a notice stating the originator of the work (and/or his agents who actual present the work), or a link to the original, or both, be provided.

Which leads us to the next consideration: Tangential, but definitely germane to the central issue of the selling of “art”-work. For awhile I was engaged in designing, making, and trying to sell, art in the form of woven-beadwork. As a result, I learned something about how the real world of retailing works. And it goes like this:

You create a market for a product, say watercolor sketches by Squirrely Q. And you succeed in placing your sketches with some boutique-y retailers.

Now you need to market your product by marketing your name (or pseudonym), among other things. It happens that in many areas, there will be art “workshops” (really short courses in the use of one or another artistic medium). Many artists market their work by touring the country and setting up a sidewalk stall or some such, or holding a “trunk show,” so as to get their work out before the public.

Often enough they sell their work direct to the customer, at a price less than the local retailer (the “middleman”) charges.

And the retailer goes nuts. The artist is underselling him! The WO-O-RR-LLLLDDD is coming to an end! Unfair! Boycott that artist! Etc., etc., etc.

Horsefeathers. That artist is creating (or expanding) a demand for his work, and in the long run the retailer will benefit from increased sales, if the work is appealing enough.

Because it is a fact of human nature that people become victims of the Craving-and-Collecting bug, and for many there comes a time when they just can’t wait a whole year for Squirrely-O’s next appearance, and after all The Little Shop Around the Corner carries some of his or her stuff, I think I’ll stop in there and see if by any chance anything new has come in from S-O, and I come home with a lighter pocketbook.

It’s why the writers on Jim Baen’s website agreed to the allow some of their books to be downloaded from the site at no charge. Because reading the works there would, they hoped, help to generate a market for the Real Deal, the actual print books, plus other work of theirs not available free of charge.

Some of these people have attested that indeed the sales of their work overall did go up.

Unfortunately, eventually the traditional publishers decided that Baen’s system “obviously” did cut into their market, and changed their contracts with the writers to prohibit them from presenting free material at the Baen site.

Stupid, stupid, stupid.

Which is one reason why the “Fair Use” laws make sense, even as a purely financial consideration.

.

Finally, let me observe that once people get used to having something available to them at no charge (that they perceive, anyway: TANSTAAFL), they holler like stuck pigs when the “free ride” comes to an end. Even I do this, though I do lecture myself sternly when I catch myself at it.

Thus, “information should be free.” (Even when the “information” consists of “The Call of Cthulhu,” though I wouldn’t bet my life-savings on the accuracy of the info therein.) We’re all used to being able to get all kinds of stuff free on the Internet — now They, the Greedy Bad Guys, are proposing to make us pay for it. Wa-a-ah!

My, a lot of water goes under the dam [sic] while I’m busily Composing replies.

So let me also mention that implicit in my comment above is Niall’s point that in talking about copies, it’s important to remember that we’re talking about physical things. And, Niall, I believe you imply the importance of having some kind of relatively bright line in the sand, even though it’s accompanied by a certain fuzziness around the edges; so we choose the physical item to be the proper subject of copyright, arbitrary or artificial as that might seem from some points of view. If my inference is correct, I agree with you.

. . .

bobby, in my remark above I was referring to both your remarks, and especially to your comment at 7:49. Excellent analogy.

Julie, as things have been standing for a while now, it is not the selling of the copy that is the issue, but the mere distribution of the copy, for free – not just among one’s friends and family (who would each borrow the book and then return it to the person who bought it in the first place), but among millions.

Further difference is that it is more akin to borrowing a record and making a cassette copy of it to keep and enjoy – something that was nearly impossible to do with books, unless one owned a copier, and had too much time on one’s hands. And that, again, not just among a limited circle of one’s friends, but among millions (who would otherwise presumably be potential paying customers).

Niall: yes, of course. Note that I never said that physical manifestations are not important or useless, only that they do not negate the applicability of the property concept, and of its related principles.

Natalie, FWIW my way of seeing this is that content producers should find ways to protect their products without resorting to the use of government to do their work for them – after all, we all lock our doors and cars, rather than expect the government to place a tracking device on each and everyone of us, just in case we may try and steal something from someone else’s house or car.

This would maintain everyone’s freedom to both produce and consume. As to *direct* protection of property, it is not the work of government – its work is to punish theft, not to treat us all as if we were potential thieves.

Alisa, it’s not only individuals who make copies of works and then sell the copies without the permission of the producer of the original item, or his agents (publishers). Publishing houses, for instance, do the same thing, when they can get away with it. One famous example: Tolkien’s Ring cycle, during the period where it was copyrighted in England but not here. Ace Books saw fit to sell copies here, without permission from either the British publisher (forget who) or the Professor (let alone remuneration to either).

I think our laws have been updated to recognize British copyrights, though I won’t swear to it.

Music and movies, of course, are easily copied and disseminated, for pay or for free, without permission, unless the gateway provider (I mean outfits such as YouTube, or for that matter houses that publish recorded music and movies) chooses to cooperate with the legitimate copyright-holder in making copyrighted works unavailable to its viewership.

Whether the general dissemination of copies is legitimate or not is a matter of the terms the copyright-holder sets. Abbie Hoffman, for instance, famously wrote a book entitled Steal This Book. (Mr. Hoffman, as I’m sure you know, was not in favor of private property.)

Downloading from the Internet material that has been placed there under neither the auspices of Creative Commons licensing nor other forms of permission, is indeed illegitimate dissemination of copyrighted material. The fact that the physical form of the material is electronic — bits and bytes — is beside the point. Books, after all, are presentations of material by means of chemicals laid in certain arrangements on a chemical substrate. So are old-fashioned photos, and paintings, and indeed material downloaded and then printed.

I’d like to point out that I listen to a lot of stuff, and even download it if it seems to be legitimate to do so, that I would never in a million years pay for. All those old movies like The Virginian, for instance. And recordings of classical music that I like OK, but not enough to pay for. Am I as unique as all that? Well…maybe you have to be a packrat to understand. :>)

By the way, Ray Stevens and Jeanne Robertson, to name but two professional comedians, have no problem putting some of their stuff out there for all of us to download and enjoy, free of charge; and I don’t think they prohibit others from posting such work to UT. Again: Marketing. Building your audience by offering free samples. To millions. No strings attached. But that’s properly their choice to make, or their agents’, not somebody else’s.

Natalie, FWIW my way of seeing this is that content producers should find ways to protect their products without resorting to the use of government to do their work for them . . . As to *direct* protection of property, it is not the work of government – its work is to punish theft, not to treat us all as if we were potential thieves.”

Somewhat OT, but a Fun Fact: The primary rationale for automobile registration systems is to keep people from stealing autos.

Yearly licensing and taxation could be accomplished without the huge infrastructure that exists for identifying and tracking each individual vehicle. The cost that would be incurred in the price of each auto would be huge if we left anti-theft protection up to the maker of the auto – to somehow make unstealable cars is possible, but very expensive.

It’s far more efficient to have government create and maintain the registration system that makes it difficult to steal a car and put it into operation someplace else. Imagine leaving your $80,000 toy on the city streets if it could simply be towed somewhere where you wouldn’t see it and then sold to a new driver.

This is one of the few cases where government really IS us people doing something together more cheaply than we could do it ourselves.

And government force is what upholds it. Steal a car, mess with its registration in order to sell it, and go to jail.

” . . . But this thread is now in serious danger of degenerating into yet another tedious debate about IP, instead of EU attempts to regulate the internet.”

But, Laird, every single one of the ten items decried in the comment’s subject article has to do with the protection of IP.

The writer has tried to make this into an issue of “those damned bureaucrats are taking away our freedom”, but it’s just another one of the many “information wants to be free” diatribes seeking to take our gaze away from protecting private property in the name of freebies.

This is made apparent by the author’s attempt at misdirection at the end of the article, where she says this:

“Despite all the new restrictions on hyperlinks and uploads, sites like MegaUpload, which was famously shut down by US authorities for allegedly systematically infringing copyright, would not be affected.

That’s proof: This law is not aimed at sites that actually play fast and loose with copyright – it’s meant to get social networks and search engines to fork over money to struggling European cultural industries.”

Megaupload’s business model of anonymous theft has already been shut down by existing laws. There is no need for new laws aimed at what Megaupload did – these new proposed laws (overreaching as they may be) simply nibble at the edges of the theft that still goes on.

Her last statement that “this is proof” is unsound. It does not prove what she says it proves. It only proves that someone is trying – maybe too hard – to ensure that we’re paid for our own efforts unless we disclaim that right (e.g., by publishing subject to a Creative Commons license.)

Bobby, I hate to take this thread even further OT, but just because the government runs this system, does not mean it could not be ran privately (and quite possibly more efficiently).”

I can’t disagree with that, to the extent that private action beats the heck out of government action, efficiency-wise.

I do think, though, that government – the force that government brings into play – has a place in society, specifically in the protection of private property. The registration system can certainly be better accomplished through private action, but, in the end, enforcement of that system has to be handed off to force – and proactive force ought to be solely in the hands of government.

Isn’t that one of the main differences between libertarianism and anarchism?

When I say enforcement, I mean getting my stolen car back, not requiring me to pay a fee or register my auto. I agree that the registration system itself – outside of enforcing ownership through arrest of thieves and recovery of cars – could be done better privately, and maybe even voluntarily.

I’m just trying to avoid the idea that “me and my friends are gonna load our AR’s and go get my car (or my IP) back.” That part I think belongs in government’s hands – when “government” actually consists of “let’s all of us get together and agree on rules and hire someone to enforce them for us.”

I think we are. The reason I pulled out your quote to reply to was to emphasize that no matter what system and process and procedure we arrive at to protect our property, we still ultimately depend on force to enforce it, and so government does play a role.

Freedom of contract is important, but it is meaningless without duty of contract, and (sadly) at times it takes threat of force to maintain that duty.

Let’s say I want to do an anthology of stories from the old pulp magazines. Like as not, the magazines are out of business, the company that published the magazines is out of business, and the author used a pen name. That magazine is from 1930 – there is an infinitesimal chance any of the authors still live. But (at least in the US) the story is still under copyright.

Where will I find an entity honestly able to sell me the right to republish?

It’s the same on the internet. Under most circumstances, I know not whence came the cat video; and there’s a good chance the person who put it on the net didn’t have the right to do so. It is a very good cat video. Must I do without a copy, when there’s no way to trace it to its origins?

And there is the argument from multitudes. How many sites are there on the Net? I have to get permission from each one to run a search engine?

Eventually you curse, and fire up the “copy” function on your computer, the shutter on your camera, or the power on your Xerox machine. Those regulations, if real, would guarantee nobody played by the rules-as-legislated.

“Where will I find an entity honestly able to sell me the right to republish?”

First answer is, go here. The U.S. Copyright Office has a simple, effective websearch page for tracking copyright. You’ll be surprised how much you can track down with it.

But also consider that you’re describing the exact same problem I have if I buy an old muscle-car wreck, or an old restricted firearm, or anything else that I cannot use or sell without being able to document provenance. If I can’t adequately trace ownership and origin of such a purchase, it’s useless to me, but that danger is just a business risk of dealing in such things. And, just as there are processes available for re-certifying a lost title (by proving you’ve done a reasonable search with no results), there are ways to use such lost-copyright items as your pulp fiction stories.

So, the problem you describe isn’t an internet problem. It predates the internet – the internet just makes it a more common problem. I suspect the ultimate answer is going to lie in the Creative Commons approach – if you post a cat video on the online services (YouTube, etc.), you implicitly accept that it’s going to be shared unless you mark it appropriately, in a manner that is found within the file itself.

The search engine problem is puzzling to me. There’s a fairly simple setting one can make on a website which keeps all but the front page from search engine crawling. If you don’t want search engines to search through your site, you set the command and it’s done. (It won’t block all crawlers, but I have to think they’ve developed a more effective method in the years since I was involved in this.) The idea that search engines are stealing IP seems dumb to me in the face of this easy fix.

I think that what these people are actually pushing for is to stop the news aggregators like Google and Yahoo, who use their own search results to assemble pages of news that then substitute for people following links to the true news publishers. (I.e, Google News has pages of news blurbs with a line or two taken from a news publisher’s site, with a link to that site, but most people just stay on Google and read the blurbs, and the publishers never get the clicks and the ad revenue.)

“no matter what system and process and procedure we arrive at to protect our property, we still ultimately depend on force to enforce it, and so government does play a role.”

The last clause does not follow logically from the preceding ones. Yes, as a society we have chosen to employ the agency of government to implement such force, and we even go so far as to say (not entirely accurately) that it has a monopoly on the lawful use of force, but it was not always so and does not need to be so. There are plenty of other, and possibly (probably) better, methods of enforcing property rights; we’re simply so inured to the idea of government force that most of us can’t conceive of any different approach. You’re like a fish who doesn’t grasp the concept of water if you think that only government can protect property. It doesn’t even do it particularly well.

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